BRIAN S. HICKEY, MARY P. HICKEY, and ROBERT L. PAGLIA and LORRAINE M. PAGLIA, as they are Trustees of the HAY DENNIS REALTY TRUST v. JAMES J. LEPORE, et al [Note 1]

In this action, Plaintiffs, Brian Hickey and Mary Hickey (Hickeys) and Robert Paglia and Lorraine Paglia (Pagilas), seek to determine the parties’ rights in a twenty-foot wide way (Way) located on Plaintiffs’ adjacent registered properties in Dennis (Plaintiffs’ Properties). Named Defendants include numerous lot owners who hold title to lots shown on a 217-acre tract of land that was first registered with the Land Court under G. L. c. 185, in 1903, in Registration Case No. 647 (Registered Parcel). Between 1916 and 1977, the Registered Parcel was subdivided by a series of plans filed with and approved by the court. The boundaries for all of the land in this action—including Plaintiffs’ Properties, Defendants’ lots and the Way, were established by this sequential subdivision of the Registered Parcel.

Plaintiffs commenced this action by filing their Verified Complaint on April 15, 2009, later amended on August 19, 2009. On June 14, 2010, Plaintiffs filed a Motion for Preliminary Injunction, which issued on August 10, 2010. Then, on December 20, 2010, Plaintiffs and Defendants, James J. Lepore, Douglas Suliman, Patricia Suliman, N. Richard Greenfield, Karen Greenfield, and Jack and Claire Chaflin, as Trustees of the Shore Drive Nominee Trust, filed a Joint Stipulation of Dismissal pursuant to Mass. R. Civ. P. Rule 41(a)(1)(ii). [Note 2]

Plaintiffs’ Amended Complaint seeks, under Count I, judgment under G. L. c. 240, §§ 6-10, to quiet title in the Way in Plaintiffs. Under Count II, brought pursuant to G. L. c. 240, § 7, and G. L. c. 231A, Plaintiffs seek a declaration that they own the Way free and clear of any easement rights in favor of Defendants. Essentially, Plaintiffs argue that Defendants do not have easement rights in and over the Way because 1) Plaintiffs own to the center line of the Way, 2) Plaintiffs’ Properties are registered, and 3) no easement favoring Defendants appears on Plaintiffs’ certificates of title. Defendants do not dispute that there is no easement noted on Plaintiffs’ certificates of title, however, they contend that they can nonetheless establish an easement by estoppel under the theories articulated in Lane v. Zoning Bd. of Appeals of Falmouth, 65 Mass. App. Ct. 434 (2006), further app. rev. denied, 488 Mass. 1106 (2007) and Duddy v. Mankewich, 75 Mass. App. Ct. 62 (2009), further app. rev. denied, 455 Mass. 1104 (2009).

In lieu of a trial, this case was presented on a “case stated” basis upon 285 exhibits, a Partial Stipulation of the Parties filed February 16, 2011, and a Supplemental Stipulation of the Parties filed April 28, 2011. [Note 3] Additionally, most parties submitted memoranda of law in support of their respective positions. To the extent that the parties’ title information is not set forth in the material facts below, the parties’ joint stipulations as well as the agreed-upon exhibits are incorporated herein for purposes of appeal.

A “case stated” arises when the parties agree on all the “material ultimate facts, on which the rights of the parties are to be determined by law.” Pequod Realty Corp. v. Jeffries, 314 Mass. 713 , 715 (1943); see also Frati v. Jannini, 226 Mass. 430 , 431 (1917). A case stated presents all pertinent facts from which the judge might draw inferences. Reilly v. Local Amalgamated Transit Union, 22 Mass. App. Ct. 558 , 568 (1986). Once the parties have submitted a case stated, it is up to the judge to apply the law to the facts stated. Caissie v. City of Cambridge, 317 Mass. 346 , 347 (1944). Decisions, therefore, are made upon the stated facts, all inferences warranted by the facts, and the applicable law as applied to the stated facts and inferences. See Godfrey v. Mutual Finance Corp., 242 Mass. 197 , 199 (1922); see also Town of Ware v. Town of Hardwick, 67 Mass. App. Ct. 325 (2006) (Stating that in a ‘case stated’ review, “any court before which the case may come, either in the first instance or upon review, is at liberty to draw from the facts and documents stated in the case any inferences of fact which might have been drawn therefrom at a trial, unless the parties expressly agree that no inferences shall be drawn”).

Based on the submissions of the parties, the facts are as follows:

1. In 1903, Frank B. Tobey, owner of approximately 217 acres of land in Dennis, brought a proceeding in the Land Court to register his land pursuant to G. L. c. 185. On August 3, 1903, Tobey was issued a Decree Certificate in Registration Case No. 647, determining the title and setting the boundaries to the Registered Parcel. It was filed as Certificate of Title No. 16, filed on May 20, 1903, in the Barnstable Registry District. [Note 4]

2. At various points in time, the Registered Parcel was subdivided by plans numbered 647-A through 647-Z and 647-1 through 647-18. The boundaries for all of the land in this action—including Plaintiffs’ lots, Defendants’ lots and the Way, defined below, were originally registered and established through this continuous subdivision of the Registered Parcel.

A. Subdivision of the Registered Parcel [Note 5]

3. The first subdivision, shown on Plan 647-B entitled, “Subdivision Plan of Land in Dennis,” dated March 1916, filed on June 19, 1917 (B Plan), subdivided the Registered Parcel into 155 lots, seventy-five of which are shown on Sheet 1, and eighty of which are shown on Sheet 2. The B Plan created numerous “streets,” as well as four ten-foot “ways,” which provided access to Cape Cod Bay between approximately every three of the beachfront lots in the subdivision. See Exhibit 210.

4. Plan 647-D, entitled “Subdivision of part of Land shown on Plan 647A filed with Cert. of Title No. 16” (D Plan), dated August 1936, filed September 16, 1936, further subdivided the Registered Parcel. [Note 6] The D Plan depicts five waterfront lots lettered sequentially, east to west, Lot F through Lot J. The D Plan created the Paglias’ lot, Lot J, which borders Cape Cod Bay to the north, Shore Road to the south, the Way to the west and Lot I to the east. The D Plan also established the Ways’ current width of twenty-feet and current location in between Plaintiffs’ respective lots. [Note 7] See Exhibit 212.

5. Plan 647-F, entitled “Subdivision of part of Land shown on Plan 647A filed with Cert. of Title No. 16” (Plan F), dated July 7, 1938, filed on July 26, 1938, further subdivided the Registered Parcel. The F Plan depicts thirteen waterfront lots starting lettered sequentially from east to west, Lot J through Lot W. The F Plan created the Hickeys’ lot, Lot X, which borders Cape Cod Bay to the north, Shore Road to the south, the Way to the east and Lot Y to the west. Lot X is shown adjacent to Lot J and the two lots are separated by the Way. See Exhibit 214.

6. Plan 647-G, sheets 1 and 2, entitled “Subdivision of part of Land shown on Plan 647A filed with Cert. of Title No. 16” (Plan G), dated December 31, 1939, filed on May 26, 1940, further subdivided the Registered Parcel. The G Plan depicts the Way and the previously subdivided shore lots, including Lots J and X. [Note 8] See Exhibit 215.

7. Plan 647-M, sheets 1, 2 and 3, entitled “Subdivision Plan of Land in Dennis” (M Plan), dated April 26, 1947, filed on June 18, 1947, further subdivided the Registered Parcel. [Note 9] See Exhibit 218.

8. Plan 647-S, entitled “Subdivision Plan of Land in Dennis” (Plan S), dated September 22, 1955, filed on October 10, 1955, further subdivided the Registered Parcel. [Note 10] See Exhibit 219.

9. Plan 647-2, sheets 1 and 2, entitled “Subdivision Plan of Land in Dennis” (Plan 647-2), dated January 30, 1963, filed on August 31, 1964, further subdivided the Registered Parcel. [Note 11] See Exhibit 221.

10. Plan 647-8, entitled “Subdivision Plan of Land in Dennis” (Plan 647-8), dated December 18, 1968, filed on July 16, 1969, further subdivided the Registered Parcel. [Note 12] See Exhibit 222.

11. Plan 647-11, entitled “Subdivision Plan of Land in Dennis” (Plan 647-11), dated November 9, 1972, filed on May 16, 1973, further subdivided the Registered Parcel. [Note 13] See Exhibit 223.

12. Plan 647-15, entitled “Subdivision Plan of Land in Dennis” (Plan 647-15), dated April 11, 1977, filed on August 31, 1977, further subdivided the Registered Parcel. [Note 14] See Exhibit 225.

B. The Parties

13. Plaintiffs, Brian S. Hickey and Mary P. Hickey, husband and wife, are residents of Winchester.

14. Plaintiffs Robert L. Paglia and Lorraine M. Paglia, husband and wife, trustees of the Hay Dennis Realty Trust, are residents of Wayland.

15. Lot X was first conveyed out of the Registered Parcel by deed dated August 28, 1944, from Lunette Luscombe and Ruth T. Morely to Eugene and Harriett Waldron, filed as Document No. 15855 (Waldron Deed). The Waldron Deed states that Lot X is “subject to and has the benefit of the rights, and provision as set forth in Certificate 3710, so far as the same are in force and applicable.” [Note 15] See Exhibit 29. Through registered mesne conveyances, the Hickeys are now the registered title-holders of Lot X.

16. Lot X was conveyed to the Hickeys by deed dated May 14, 1994, filed as Document No. 615,089, and the Hickeys are the registered owners of Lot X under Certificate of Title No. 133867 (Hickey Certificate). The Hickey Certificate describes their land as “Lot X in Plan 647-F” and provides:

Said land is subject to and has the benefit of the rights and provisions in Certificate of Title No. 3710 [exhibit 9], so far as in force and applicable.

There is appurtenant to said land a right of way over the adjacent ways as shown on said plan 647-F.”

And it is further certified that said land is under the operation and provisions of Chapter 185 of the General Laws, and that title of said owner(s) it said land is registered under said Chapter, subject, however, to any of the encumbrances mentioned in Section forty-six of said Chapter, which may be subsisting. See Exhibit 32.

17. Lot J was first conveyed out of the Registered Parcel by deed dated September 4, 1936, from Lunette Luscombe and Ruth T. Morely to Donald B. Aldrich, filed as Document No. 8841 (Aldrich Deed). The Aldrich Deed conveyed Lots F, G, H, I, and J, as shown on Plan D, “together with rights of way for all purposes over said roads and right of way[s].” Donald Aldrich’s Certificate of Title No. 4063 stated that the lots conveyed were, “subject to and have the benefit of the easements, restrictions and rights set forth in Doc No. 8841 and Certificate No. 3710, so far as the same are in force and applicable.” [Note 16] See Exhibit 25, 26. Through registered mesne conveyances, the Paglias are now the registered title-holders of Lot J.

18. Lot J was originally conveyed to the Paglias by deed dated August 30, 1999, filed as Document No. 777396, and the Paglias took ownership of Lot J under Certificate of Title No. 154581 (Paglia Certificate). Later, on July 24, 2000, the Paglias transferred said property to themselves as Trustees of the Hay Dennis Realty Trust by deed dated July 5, 2000, filed as Document No. 806532, and Certificate of Title No. 158457 issued to the Paglias, as trustees. The Paglia Certificate described the land as “Lot J Land Court Plan 647-D.”

19. There is no easement in favor of any Defendant noted on the certificates of title to Lots X or J, owned by the Hickeys and the Paglias, as trustees, respectively.

20. Sixty-eight (68) Defendants hold thirty-seven (37) certificates of title for a total of forty-one (41) lots in the subdivision. As explained above, said lots are shown on a series of subdivision plans filed between 1916 and 1974.

21. There are eight (8) certificates of title which contain the following or substantially similar language: “[t]he Grantees shall have, as appurtenant to said parcel, a right to use all ways shown on all other plans filed in Land Court Case No. 647, for all purposes in common with others entitled thereto.” This language is either expressly set forth on the face sheet the certificates of title or is expressly incorporated by reference to a prior deed or certificate of title. (Group 1). [Note 17]

22. There are seven (7) certificates of title which provide: “there is appurtenant to said land a right to use the ways shown on said plan [G Plan] for all purposes in common with others entitled thereto” (Group 2). [Note 18] This language is either contained on the face sheet of the thirteen Defendants’ certificates of title or is expressly incorporated by reference to a prior deed or certificate of title. As stated above, the G Plan depicts the Way and registered beachfront lots, including lots X and J, and also established a series of numbered inland lots.

23. There are twelve (12) certificates of title which contain either the following or substantially similar language: “there is appurtenant to [relevant lot] a right to use the ways shown on [relevant plan] for all purposes in common with others entitled thereto” (Group 3). [Note 19] This language is either contained on the twenty-three Defendants’ certificates of title or is incorporated by reference to a prior deed or certificate of title.

24. There are six (6) certificate of title which are silent as to any rights of way appurtenant to the subject land. [Note 20] Of the six, only one Certificate No. 182408, describes the lot with reference to the G Plan.

25. There are four (4) certificates of title that reference certificates of title numbers 3710, 10185, or 18138 (exhibits 13, 15, 19), as their source of title. [Note 21] Of the four, only one Certificate, No. 123333, describes the lot with reference to the G Plan.

C. The Way

26. The Way is located in between Plaintiffs’ lots and provides access from Shore Drive to Cape Cod Bay. The Hickeys’ lot abuts the western boundary of the Way for its entire length, while the Paglias’ lot abuts the eastern boundary of the Way for its entire length.

27. The Hickeys own the westerly half of the Way in fee to its center line. The Paglias own the easterly half of the Way in fee to its center line.

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As an initial matter, “[t]he parties asserting the easement . . . have the burden of proving its existence.” Boudreau v. Coleman, 29 Mass. App. Ct. 621 , 629 (1990). Defendants therefore bear the burden of proving that their lots have the benefit of an easement over the Way. Because Defendants bear the burden of proof and this was presented as a case stated, if there is a material fact missing, and the fact cannot be inferred, Defendants have not met their burden and the finding must be in favor of Plaintifffs. See Callahan v. Athol, 345 Mass. 572 , 574 (1963).

“The principal reason for establishing a land title registration system pursuant to G. L. c. 185 is to provide individuals with a means of ensuring that titles to land are indefeasible and certain.” Comm. Electric Co. v. MacCardell, 450 Mass. 48 , 50 (2007). Under G. L. c. 185, § 46, holders of a certificate of title take “free from all encumbrances except those noted on the certificate.” Thus, the general rule is that “[i]n order to affect registered land as the servient estate, an easement must appear on the certificate of title.” Tetrault v. Bruscoe, 398 Mass. 454 , 461 (1986).

In Jackson v. Knott, the Supreme Judicial Court (SJC) articulated two exceptions to this general rule, holding that: “[i]f an easement is not expressly described on a certificate of title, an owner, in limited situations, might take his property subject to an easement at the time of purchase: (1) if there were facts described on his certificate of title which would prompt a reasonable purchaser to investigate further other certificates of title, documents, or plans in the registration system; (First Jackson Exception); or (2) if the purchaser has actual knowledge of a prior unregistered interest.” [Note 22] 418 Mass. 704 , 711 (1994). Of particular importance to the issue now before this court, the Jackson Court stated in footnote seven of its decision that:

“It is also contended that the defendants are estopped to deny the existence of an easement based on the notice provided by the existence of the Way on the plan. However, we have never applied to registered land an estoppel theory not based on actual notice. The judge stated that Goldstein v. Beal, 317 Mass. 750 (1945), supports the possibility of the creation of an easement by estoppel on registered land based on a plan. This is not so. The principal focus in Goldstein . . . is on “the intention of the parties,” a factor which does not concern estoppel. Goldstein explicitly disclaims an estoppel theory. See id. at 755-756 (estoppel "is not applicable”).” Jackson, 418 Mass. at n. 7.

More recently however, two Appeals Court decisions have held that when the First Jackson Exception is triggered and a reasonable purchaser is prompted to investigate other documents (other certificates of title, documents, or plans) within the registration system, a purchaser need not uncover an express easement for the exception to have relevance. More specifically, the Appeals Court has indicated that the principles underlying the doctrine of easement by estoppel apply in the context of registered land. See Lane v. Zoning Bd. of Appeals of Falmouth, 65 Mass. App. Ct. 434 (2006), further app. rev. denied, 488 Mass. 1106 (2007); see also Duddy v. Mankewich, 75 Mass. App. Ct. 62 (2009), further app. rev. denied, 455 Mass. 1104 (2009). [Note 23]

In Lane v. Zoning Bd. of Appeals of Falmouth, [Note 24] the developer defendant wished to establish an easement over a disputed way located between plaintiffs’ two registered lots. In Lane, as in Jackson, it was undisputed that an easement in favor of the developer defendants was not noted on the plaintiffs’ certificates of title. However, the plaintiffs’ certificates referred to the disputed way as a boundary line and also referenced the subdivision plan filed in the land registration office on which the way was shown. Invoking the First Jackson Exception, the Appeals Court held that the plaintiffs, as grantees, were on notice that their property was bounded by a way in a subdivision and that others may have rights in the way. Lane, 65 Mass. App. Ct. at 438, citing Jackson, 418 Mass. at 712.

The Appeals Court then held that the developer defendant in Lane had an easement over the disputed way because “when a grantor conveys land bounded on a street or way, he and those claiming under him are estopped to deny the existence of such street or way… .” Lane, 65 Mass. App. Ct. at 437, citing Murphy v. Mart Realty of Brockton, 348 Mass. 675 , 677 (1965) (quoting Casella v. Sneierson, 325 Mass. 85 , 89 (1949)). The Lane court then concluded by specifically stating, “[t]his conclusion is not affected by the fact that the plaintiffs’ titles . . . are registered.” Lane, 65 Mass. App. Ct. at 437. The SJC denied further appellate review in 2007.

Two years later, the Appeals Court repeated the result reached in Lane when it decided Duddy, 75 Mass. App. Ct. 62 , which also involved registered land. As in Lane and Jackson, it was undisputed that there was no easement listed on the servient estate holder’s certificate. And, also as in Lane and Jackson, the court required the plaintiffs in Duddy to investigate the registration system under the First Jackson Exception because plaintiffs’ certificates of title contained an express reference to a registered plan. Duddy, 75 Mass. App. Ct. at 67.

The Duddy court held that: “the description of the lots as bounding on the [disputed] way and the reference to the [relevant] plan in the certificate of title, the plan’s depiction of [the disputed way] as providing frontage for each lot and access to the public way, and the absence of reasonable alternative access” satisfied the intent necessary to create the easement and bind the servient estate owner with regard to the same. Id. at 68. The Duddy court also held that, “where land is conveyed with reference to a plan, an easement is . . . created only if clearly so intended by the parties to the deed.” See Duddy, 75 Mass. App. Ct. at 67, citing Jackson, 418 Mass. at 712 (internal citations omitted). In reliance on this principle, the Appeals Court held that an easement existed over the registered land because it was evident from the documents in the registration system that the parties intended for an easement to exist over the disputed way. [Note 25] Duddy, 75 Mass. App. Ct. at 67.

This court notes that the SJC denied further appellate review of both Lane and Duddy. [Note 26] Therefore, when determining the issue before this court—whether Defendants have an easement over the disputed Way, notwithstanding the fact that an easement in favor of Defendants is not noted on Plaintiffs’ certificates of title—the First Jackson Exception must be applied with full consideration of the holdings in Lane and Duddy.

Thus, if a certificate of title references a plan within the registration system, purchasers are expected to review that plan and investigate further other certificates of title, documents, and plans contained within the registration system to determine both their own rights and whether others have rights. See Duddy, 75 Mass. App. Ct. at 62. When conducting an investigation of the registration system, “we ask whether there were facts . . . available [to Plaintiffs] at the time of their purchases, which would lead them to discover that their properties were subject to an encumbrance, even if that encumbrance was not listed on their certificates of title” (emphasis in original). Duddy, 75 Mass. App. Ct. at 66-7. “A plan referred to in a deed becomes a part of the contract so far as may be necessary to aid in the identification of the lots and to determine the rights intended to be conveyed. The purpose and effect of a reference to a plan in a deed, is a question of the intention of the parties. Indeed, it is well established that where land is conveyed with reference to a plan, an easement is . . . created only if clearly so intended by the parties to the deed. It has been said, however, that a right of way shown on a plan becomes appurtenant to the premises conveyed as clearly as if mentioned in the deed.” Duddy, 75 Mass. App. Ct. at 67 (internal citations and quotations omitted).

Here, no encumbrances were noted on Plaintiffs’ certificates of title indicating that other lots had an easement or right of way over the Way; rather, the Hickey Certificate described their lot as “Lot X on Plan 647-F,” and the Paglia Certificate described their lot as “Lot J on Plan 647-D.” The Hickeys and the Pagilas were therefore obligated to review the plans mentioned in their respective certificates of title and investigate the registration system further to determine who had rights in the disputed Way. The Hickey Certificate also provided “said land is subject to and has the benefit of the rights and provisions in certificate of title no. 3710, so far as in force and applicable,” that should have prompted the Hickeys to investigate the issue further.

Upon further investigation of the registration system, Plaintiffs, both in 1994, when the Hickeys acquired Lot X, and in 1999, when the Paglias first acquired Lot J, they would have had available to them the certificates of title for Defendants’ predecessors’, Defendants’ predecessors’ deeds), the registration decrees for the land included in Case Number 647, and the plans approved in Case Number 647. And, after a review of this record Plaintiffs would “have been aware of the progression of the development of the original [Registered Parcel]” and would have become aware that their properties were subject to an encumbrance. Duddy, 75 Mass. App. Ct. at 70.

When the Hickeys and the Pagilas purchased their lots in 1994 and 1999 respectively, they would have had available to them the A Plan, depicting all of Frank Tobey’s original Registered Parcel; the B Plan, showing the original subdivision of the Registered Parcel into 155 lots and the creation of numerous streets and ways, four of which were shown between approximately every three beachfront lots as providing access to Cape Cod Bay; the D Plan, depicting five beachfront lots, including the Pagilas’, and establishing the disputed Way’s current location and width of twenty-feet; the F Plan, depicting thirteen beachfront lots, including the Hickeys’, and showing the disputed Way running in between Plaintiffs’ lots providing access from Shore Drive to Cape Cod Bay; the G Plan, which further subdivided the Registered Parcel and also showed the previously subdivided beachfront lots, as well as the Way providing access to Cape Cod Bay; and Plans M, S, 647-2, 647-8, 647-11, and 647-15, showing further subdivision of the Registered Parcel. [Note 27]

This court determines that twenty-eight (28) Defendants who are owners under seventeen (17) certificates of title have established that they benefit from an easement over the Way. [Note 28] All twelve of the Defendants in Group 1 have language on their certificates which either provides: “as appurtenant to said parcel, a right to use all ways shown on all other plans filed in Land Court Case No. 647, for all purposes in common with others entitled thereto,” or references a document that sets forth the appurtenant right over such ways. The information contained within the land registration system, when viewed in conjunction with the Group 1 Defendants’ certificates of title and/or deeds granting them rights over the ways would have been sufficient to identify the Group 1 Defendants as registered owners with rights over the Way.

As noted above, Plaintiffs would have been aware of the progression of the development of the Registered Parcel and of the existence of the Way shown on the G Plan as providing access to Cape Cod Bay. See Duddy, 75 Mass. App. Ct. at 68-71. They also would have been aware that despite the apparent intent to subject the Way to an easement in favor of the Group 1 Defendants, the grantor had failed to explicitly express that intent in the deeds but relied, instead, on the subdivision plans, to which express reference was made. See id. Accordingly, this court finds and holds that the Defendants in Group 1 have the benefit of an easement of access over the disputed Way, notwithstanding the fact that an easement in favor of them is not noted on Plaintiffs’ certificates of title. [Note 29]

Furthermore, the Group 2 Defendants’ certificates of title and/or deeds granting them an “appurtenant . . . right to use the ways shown on [the G Plan] for all purposes in common with others entitled thereto,” when viewed in conjunction with the G Plan, shows that Plaintiffs’ predecessors-in-title intended for the Group 2 Defendants to benefit from an easement over the Way. Thus, this court finds and holds that Defendants in Group 2 to have the benefit of an easement of access over the disputed Way, notwithstanding the fact that an easement in favor of Defendants is not noted on Plaintiffs’ certificates of title. [Note 30] This court also finds and holds that the title holders under Certificates of Title Nos. 182408 and 123333, as owners of lots shown on the G Plan, also have rights over the Way, even though their certificates do not contain any language about rights over all the ways on the G Plan, as this court has found that the intention of the subdivider of the G Plan so intended.

Forty (40) Defendants who are owners under twenty (20) certificates of title, however, have failed to establish that they benefit from an easement over the Way. [Note 31] The twenty-three (23) Group 3 Defendants were conveyed appurtenant rights to use the ways and streets as shown on specific plans in Case Number 647. [Note 32] The fact that the Way is not shown on the plans referenced in the Group 3 Defendants’ certificates of title and/or deeds indicates there was no intention for these lot owners to benefit from an easement over the Way. [Note 33] Unlike other parties to this action, the Group 3 Defendants were not granted rights over the ways on a plan which depicted the Way, nor were they granted a general right over all the ways shown on all of the plans in Case No. 647; rather they were granted rights over ways shown on specific plans—none of which depicted the disputed Way. [Note 34]

This court therefore finds that the Group 3 Defendants do not have easement rights over the [Note 35] Eight (8) of the remaining Defendants are owners under three (3) certificates of title that reference either certificate No. 3710 or 18138, as their source of title. [Note 36] With respect to these Defendants, there is nothing within the record to establish an easement over the Way when viewed through the lens of the Lane and Duddy.

Lastly, five (5) certificates of title for lots owned by seven (7) of the remaining Defendants are completely silent as to any appurtenant rights over any streets or ways and the names of two (2) Defendants, Rosalind and Sanford Neuman, do not appear on any of the certificates of title submitted to the court. [Note 37] This court therefore finds and holds that these Defendants also do not benefit from an easement over the Way. See supra p. 10, citing Callahan, 345 Mass. at 574 (If there is a material fact missing, and the fact cannot be inferred, Defendants have not met their burden and the finding must be for Plaintiffs).

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For the reasons set forth above, this court concludes that each of the Defendants who are owners under Certificates of Title Nos.: 124830, 120537, 129337, 107584, 107585, 122510, 127461, 75211, 168860, 52287, 184672, 148514, [Note 38] 190482, 77491, 72540, 182408, 123333, has the benefit of an easement of access over the disputed Way, in common with Plaintiffs and others entitled thereto. All other Defendants have failed to carry their burden that they are entitled to easement rights in and over the Way. Plaintiffs’ Motion for General Default hereby is ALLOWED. [Note 39]

Counsel and the self-represented parties have until March 28, 2013, to review this decision and inform the court if there are any misstatements of the stipulated facts, which the court reordered and restated, but did not mean to change in substance. This is not meant to invite re-argument of the legal issues in this action, but is meant to afford everyone the opportunity to review the accuracy of the restated facts before judgment issues. If the court does not receive any written objections by March 28, 2013, the Judgment in accordance with this decision will then issue.